77 N.C. 394 | N.C. | 1877
The plaintiff John W. Kirkman married Nancy E. Clymer in 1858, who was a widow with two children, namely, Joseph Clymer and a daughter, who married Henry A. Wilson.
The said Nancy, in 1872, was a distributee of a certain estate, and as such was entitled to the sum of $690. In the settlement of this matter in 1873 Messrs. Dillard Gilmer, her attorneys, deposited said amount with the defendant bank, and took a certificate of deposit, which they turned over to her, and she held the same more than six months.
The said Nancy died intestate on 12 February, 1875, and the plaintiff was duly appointed her administrator. He then demanded of the defendant payment of the amount of the certificate. The other facts necessary to an understanding of the case are stated by Mr. Justice Reade in delivering the opinion of this Court.
Upon issues submitted, and under the instructions of his Honor, the jury rendered a verdict for the defendant. Judgment. Appeal (395) by plaintiff. Under the Constitution, the real and personal property of the wife "shall remain and be her sole and separate estate,. . . and *289 may be devised and bequeathed, and, with the written assent of her husband, conveyed by her as if she were unmarried." Const., Art. X, sec. 6
No power whatever is given to the husband, and no restriction upon the wife, except as to the "conveyance" of the property to take effect during her life, which requires the husband's assent in writing.
The statute, which was intended to carry out the constitutional provision, uses somewhat different language: "No woman during her coverture shall be capable of making any contract to affect her real or personal estate, without the written consent of her husband." Bat. Rev., ch. 69, sec. 17.
It is not worth while to consider whether the Legislature could restrict or enlarge the rights of the wife or of the husband, as they are declared in the Constitution, because it is evident that the Constitution and statute are in harmony and mean the same thing — to make the wife's property her own as if she were unmarried, without the power of sale or charge, to operate during her life, without the husband's written consent.
Does the constitutional restriction against her "conveying" her property, or the statutory restriction against her "making any contract to affect it," without the written assent of the husband, operate to prevent her from acquiring, receiving, or reducing her property into (396) possession without his written assent? Can the husband, by withholding his written assent, prevent the wife from reducing her property into possession? If I have her property, may I not deliver it up to her? If I owe her a debt, may I not pay her? Undoubtedly; else, instead of making the wife's property her own, "sole and separate," she would be completely at the mercy of her husband.
If she had not the right to receive her property in this case, then she never has received the $690 from anybody, from the administrator, from Dillard Gilmer, nor from the bank. They all owe it to her now, and her administrator had his choice to sue any of them. But if she had the right to receive it from the administrator, from Dillard Gilmer, or the bank, then she has received it, and her administrator cannot recover it.
Dillard Gilmer owed her $690, which they had collected for her of an administrator, and they, for safety and convenience, deposited the money in bank, the defendant, to her credit, and took a certificate of deposit as evidence that they had done so; and in the presence of her husband, and with his oral but not his written assent, they delivered to her the certificate of deposit, and she gave them a written receipt for the amount, which receipt was witnessed by her husband. *290
In that $690 which they had collected for her, and which they owed her, she had a property, and in some sense the discharging them and taking the bank in their place was a "contract affecting her property," and yet it would seem monstrous to held that by that transaction she had "conveyed" her property to them in the sense used by the Constitution, or made a "contract with them affecting it" in the sense used by the statute. They owed her a debt and paid it to her; that was all.
Now, suppose she had gone immediately to the bank with the certificate and drawn the money and given up the certificate: how could that have differed from the transaction with Dillard Gilmer? Not at all. In both cases she was "receiving" her property, and not "conveying" or "disposing" of it.
(397) If she could have gone to the bank and received the money with her own hands, she could have sent an agent just as well; and that is just what she did. At one time she sent her son to the bank with the certificate and with a written order to the bank to pay her son $300 "for her," which the bank did, and indorsed the payment on the certificate and sent it back to her. Subsequently there was another payment of $90 indorsed on the certificate, but it is not stated to whom the payment was made, as there had also been a prior payment of $50 indorsed. And finally the certificate was sent by another son, or son-in-law, to the bank, with the following indorsement: "Mr. Gray: Please pay the amount of this note to H. A. Wilson. Yours, Nancy E. Kirkman." And the bank paid the money and took up the certificate.
Now, in all this, what property did she "convey" to the bank, or what contract did she make with the bank affecting her property? It is admitted that the payments of $20 and $90 were for her; the order for $300 stated expressly that it was for her, and the indorsement requesting the balance to be paid to Wilson only made him her agent to receive it, the certificate not being negotiable, being payable in currency. So that the bank paid the whole of it to her, or her agent.
But, then, it is said that notwithstanding that, yet she in fact received the money and gave the $300 to one son and the balance to another son or son-in-law. Grant that to be so, and yet it does not affect the defendant. The defendant knew nothing of that fact, and was not obliged to look to the use made of the money after she had received it.
It should be noticed that this is not the suit of the husband in his individual right, but as administrator of his wife, and as such he (398) has no right which she would not have if she were alive and the plaintiff in this action. And having received her property from the bank by herself or her agents, or by persons whom she induced the bank to believe were her agents, and having "conveyed" nothing to the bank, she could not recover. *291
We have laid but little stress upon the issues or the finding of the jury, because they are so confused as to be unintelligible. We have gathered the facts as best we could from the whole record.
PER CURIAM. No error.
Cited: Holliday v. McMillan,
